COLUMN ONE : Affirmative Action: Why Battle Erupted : Opponents say programs to combat bias are unfair themselves; backers counter that minorities still need an edge to overcome 300 years of discrimination. A bitter national fight begins in California.

By CATHLEEN DECKER

Feb. 19, 1995 12 AM PT

TIMES POLITICAL WRITER

From her office at the NAACP’s Legal Defense Fund headquarters, Constance Rice’s lawyerly elocution dissolves entirely. Her words seep bitterness. Her anger is palpable, bursting forth in spurts.

“First the Latinos. Now the blacks,” says the Los Angeles lawyer. “It is getting ugly.”

The target of her ire is a 56-word paragraph, simple in language but potentially incendiary.

It is the first paragraph of the reassuringly titled California Civil Rights Initiative. But to Rice and civil rights activists around the nation, it represents an all-out assault on one of the noblest experiments of the 1960s: affirmative action, the activist policy by which America was to make amends for its admittedly discriminatory habits, past and present.

The California initiative intended for the 1996 ballot, and an identical measure now before the Legislature, would amend the state Constitution to gut all but the most passive forms of government-sponsored affirmative action for women and minorities, specifically targeting state and local hiring and admissions to California schools. Its reach could be so broad it could even outlaw voluntary desegregation of elementary schools.

Coming close after Proposition 187, the dispute over illegal immigration that particularly pained the state’s Latino community, the efforts have resurrected fears of division in a state that has seen more than its share of strife in recent years.

But proponents of the measures say that is exactly what they seek to salve. Affirmative action programs meant to combat bias have become discriminatory themselves, they say, setting up a rigid system of racial and gender preferences that have prompted unfair treatment of white men, and even some minorities.

“When you deny someone who has earned it and give to someone else who has not earned it . . . you create anger and resentment,” said Assemblyman Bernie Richter (R-Chico), author of the measure that would outlaw preferences. “You stir the flames of racial hatred.”

It is a wrenching battle between those who believe that majority America has contracted a convenient amnesia about its past and present bias, and those who feel that a nation cannot afford to put any goal, however noble, above absolute fairness as they define it.

A judgment by California voters may be more than a year off--if enough signatures are collected to qualify the initiative for the ballot. Already the issue has gained the momentum of public attention. And despite the fact that much of the argument centers on perceptions and not hard evidence of what affirmative action has produced, politicians sense the potency of its appeal.

A bill outlawing the use of preferences by private businesses--which would not directly be touched by the California measures--has been introduced in Congress. Leading Republican presidential contenders have taken up the topic. Democrats, including President Clinton, are scrambling to figure out how to respond.

California has been here before, of course, not only in 1994’s race-inflected fight over illegal immigration but 16 years before that, when the U.S. Supreme Court’s decision in University of California regents vs. Bakke prompted a statewide debate over what debt, if any, still was owed to those disenfranchised in the past.

The authors of the California measures, mindful of the national attention, vow that theirs will be a reasoned campaign, fueled by intellect rather than raw emotion. But in some ways, both sides of the debate agree, the fuse already has been lit.

“For better or worse,” said one civil rights attorney, “a lot of things begin in California.”

It does not seem so threatening, a little office in Berkeley where two scholars and a few assistants answer phones and labor over a database of little more than 3,300 supporters. Their bank account, Thomas Wood says, holds less than $30,000, far short of the estimated $1 million it will take to collect nearly 700,000 valid signatures needed to put their initiative on the ballot.

“This,” says Wood, with an understated wryness, “is about as grass-roots as it gets.”

Perhaps not for long. Wood, a former philosophy teacher, and his partner, Glynn Custred, an anthropology professor at Cal State Hayward, teamed up in mid-1992 as a result of their joint disdain of the affirmative action programs each had witnessed on campuses.

Their effort went nowhere. They missed the 1992 ballot, then the 1994 ballot. Now, through a collision of public mood and political ambition, they find themselves in the right place at the right time.

Their grass-roots operation is at a turning point. They have hired a respected political consultant to shepherd the initiative, even though they would prefer that the Legislature put Richter’s constitutional amendment on the ballot and spare them the trouble.

They are trying to broaden support beyond their mostly white, mostly Republican group, arguing that affirmative action as it is practiced is detrimental to everyone, including those it is supposed to benefit. Wood and his supporters contend that they are simply returning to the intent of the 1964 Civil Rights Act, which codified fairness to all Americans with the same words that the initiative’s framers have taken as their own:

“Neither the state of California nor any of its political subdivisions or agents shall use race, sex, color, ethnicity or national origin as a criterion for either discriminating against, or granting preferential treatment to, any individual or group in the operation of the state’s system of public employment, public education or public contracting.”

Public opinion polls have always shown support for affirmative action in theory, but the backing fell when it came to racial preferences and quotas, which are broadly unpopular. But now, according to a recent national poll by The Times, there has been a startling increase in those who say they believe that affirmative action in general has outlived its usefulness.

In the late January survey, 39% of respondents said affirmative action programs have “gone too far”--up dramatically from the 24% who said they felt that way less than 3 1/2 years ago. Twenty-three percent said such programs had not accomplished enough, down from the 27% who said so in 1991. Also declining were those who said diversity programs were “adequate.” The poll’s margin of error was plus or minus 3 percentage points.

Across the political spectrum, affirmative action received only lukewarm support at best in the poll--except among blacks. The dividing line was stark: 46% of white respondents said affirmative action has gone too far, while only 8% of black respondents felt the same way. Conversely, 58% of black respondents said the programs had not accomplished enough, a point of view shared by only 15% of white respondents.

When the subject turned specifically to the use of racial or gender preferences, however, the poll showed white and black respondents united in opposition. More than three-fourths of white respondents favored outlawing them and 58% of black respondents agreed. Only 20% of white respondents and 39% of black respondents supported preferences.

The changing viewpoint is echoed by Republican politicians, at both the state and national levels. Gov. Pete Wilson, as San Diego’s mayor in the 1970s, set five-year goals for the hiring and promotion of women and minorities and supported programs meant to benefit minority youngsters. But lately he has indicated he could support abolishing preferences.

“We are happily in a time when a number of the compensations that were earlier advanced to make up for earlier discrimination are no longer needed,” Wilson said.

Like Wilson, Senate Majority Leader Bob Dole (R-Kan.) has apparently changed his views. In 1986, Dole was among dozens of Republican senators who helped block a Ronald Reagan Administration attack on federal affirmative action programs. In a recent television appearance, however, the probable presidential candidate questioned their worth.

“The people of America now are paying a price for things that were done before they were born,” Dole told panelists on NBC-TV’s “Meet the Press.” “We did discriminate. We did suppress people. It was wrong. . . . But should future generations have to pay for that?”

In California, few politicians have defended affirmative action, the noteworthy exceptions being black officials such as Assembly Speaker Willie Brown and Los Angeles County Supervisor Yvonne Brathwaite Burke. In a press conference last week, Brown said affirmative action is needed to make up for decades of discrimination against minorities and women.

“Now that the system is being challenged to let Willie’s relatives in . . . suddenly there is something wrong, or unconstitutional or unacceptable,” he said. “. . . I’m telling you, it gnaws at you day in and day out.”

Among many Democrats, however, concern for public opposition to affirmative action has spawned less an effort to defend it than an attempt to come up with a more palatable alternative to the proposed rollbacks.

California Democratic Party Chairman Bill Press, while expressing his support for affirmative action, signaled that he is not about to defend the status quo as party officials did to their detriment in the fight over Proposition 187.

“It has opened a lot of doors of opportunity for people who could not get through the door,” Press said. “At the same time, if it’s broke, we’ve got to fix it.”

The genesis of such changing attitudes is a matter of dispute. Advocates of affirmative action say Americans are more open to the current moves because of a years-long campaign by conservatives--particularly radio talk show hosts--and because of recent national economic turmoil.

Ralph G. Neas, executive director of the Leadership Conference on Civil Rights, dates the latest attacks to efforts by Reagan and George Bush Administration officials to curb the programs. The moves were turned back by a coalition of business leaders, civil rights activists, Democrats and moderate Republicans--but Neas said he believes that the seeds of doubt had been planted.

“They did create considerable damage. . . . In some ways, they were responsible for equating affirmative action and quotas in the minds of some voters,” he said.

Quotas--hiring rigidly by the numbers without regard to qualifications--are illegal, except in rare cases sanctioned by the courts. Affirmative action, its supporters say, is the practice of broadening the pool for jobs and college admissions to a wide range of qualified people, and then picking from that pool.

But it has come to be seen by some as the leapfrogging of a less-qualified woman or minority over a better-qualified white man. Sometimes, civil rights advocates admit, that has happened--but they insist that the law gives victims of such discrimination the right to sue.

Much of the increasing concern about affirmative action, its supporters feel, can be linked to economic worry among the largely white electorate.

“Men and women of all races and ethnicities are feeling economically vulnerable,” said Marcia Greenberger, co-president of the National Women’s Law Center in Washington. “It is very tempting to look for scapegoats.”

Sociologist Larry Bobo of UCLA’s Center for Research on Race, Politics and Society says economic conditions are similarly responsible for increasing anger toward immigrants and welfare recipients. The sentiment is magnified because it comes as images of the historic civil rights struggles are fading, he added.

“African Americans did not have full citizenship rights in all 50 states until 1965,” he said. “The civil rights struggle is not something that reaches back to the Pleistocene Era when dinosaurs walked the Earth. To think that in a very short span of years you could uproot 300 brutal years of racist oppression is absurd.”

Those on the other side, however, contend that they are not ignoring the struggles of three decades ago. Indeed, they acknowledge the discrimination rampant then, and, to a lesser extent, now.

Nor, they say, are they seeking scapegoats, but are motivated solely by a desire for fairness and a conviction that efforts meant to improve the lot of racial minorities have instead fostered interracial animosity.

They are following in the path of a number of social scientists, including some black intellectuals, who argue that affirmative action has negatively affected minorities and women by suggesting they succeeded because of a government policy, not by merit.

State Sen. Tom Campbell (R-Stanford), who is on the initiative’s advisory board, disputes any connection between the current moves against racial preferences and the voter uprising against illegal immigration in 1994.

Campbell served as a clerk to Supreme Court Justice Byron R. White in 1978, the year of the Bakke decision. In preparation for the decision, he read the legislative history of the 1964 Civil Rights Act, after which, he says, he was convinced that the authors did not intend to allow preferences for or against anyone.

“I do not grant the thought that it is caused by the reaction of the white middle class,” said Campbell, who broke with many in his party to oppose Prop. 187. “I just do not see the connection.”

As his stance on Prop. 187 indicates, Campbell is not a stereotypical social conservative who might be expected to harbor anti-affirmative action views.

In 1990, when he served in Congress, he was the only Republican west of the Mississippi to vote for civil rights legislation that his party’s President, Bush, had labeled a “quota bill.” Bush vetoed the measure that year, only to sign a similar bill in 1991.

Richter, like Campbell, is a former Democrat with a past record of standing up to discrimination. With table-pounding oratory, he equates racial and gender preferences with the Nazi practice of isolating and destroying Jews.

“You will hear people say that the white male has done this and done that and is responsible for all the ills of mankind,” he said. “I try to remind people . . . how bigoted and dangerous it is. Why don’t you just add one word to that--white male Jews --and get the knee boots and the swastikas out.”

To Richter, racial and gender preferences are under attack because a critical mass of voters have finally become aware of their reach.

“It’s taken time for many people to become casualties of this,” he said. “It’s been spreading its message. It’s been implemented everywhere.”

Exactly how many people are casualties or beneficiaries of affirmative action is uncertain. Efforts to measure those numbers assume all the clarity of a swamp.

Anecdotal evidence abounds on both sides. What seems undeniable, however, is that white males have not suffered widespread insult, as opponents of preferences contend, but neither have they emerged unscathed.

Women and minorities have not made tremendous gains, but neither have they remained as victimized.

That murky outcome is not what might have been wished for by those who labored mightily to equalize the treatment of all Americans.

The term affirmative action reaches back to the 1930s, and every President, Republican or Democrat, has supported the concept since Franklin D. Roosevelt ordered defense contractors in 1941 to stop discriminating. Only in the last three decades, however, has it played a major role in American life.

A year after pushing through the 1964 Civil Rights Act, President Lyndon B. Johnson signed Executive Order 11246, which required all federal contractors, including universities, to ensure that employees were hired without regard to their race, religion, color or national origin. In 1967, it was expanded to include women.

But the order did little to change generations of ingrained behavior. So the Richard Nixon Administration ordered federal contractors to set goals for minority hiring or admissions and timetables for achieving the goals. Later efforts led to an initially loose system of preferences under which gender and race were considered positively when contractors were hiring and schools were admitting students.

“If we didn’t intervene in business as usual, we were going to get business as usual,” said Rice of the National Assn. for the Advancement of Colored People.

The use of preferences also received a boost from the Bakke decision, which arose because UC Davis set aside 16 of its 100 medical school openings for blacks, Latinos, Asians and Native Americans on the grounds that it made up for past discrimination.

Allan Bakke, a 38-year-old engineer, argued that he had been unfairly denied admission to the school because of his race, and the Supreme Court threw out UC Davis’ strict quotas. As it ordered Bakke admitted, however, the court also said that race could be taken into account by admissions officials as long as other qualities also were considered.

The prevailing public sentiment that such preferences have had a huge effect on the workplace or in universities, however, is flatly untrue. Although affirmative action has helped integrate police and fire departments and blue-collar unions, it has had less effect elsewhere.

Census figures from 1980, for example, show that whites held 82.3% of managerial and professional jobs in California--those generally commanding the highest salaries and greatest independence. By 1990, whites still controlled 75.3% of those jobs, while they made up only 57% of the population.

Blacks in California held only 5.1% of management and professional jobs in 1990, up only slightly from 1980. Latinos held 9.56%. Asians, who are not always included in affirmative action programs, held slightly more than 9% of managerial jobs.

Federal statistics underscore the same reality: Although animosity about affirmative action has increased, its impact in the workplace has been underwhelming.

According to figures from the federal Bureau of Labor Statistics, blacks increased their presence in the nation’s managerial and professional ranks only meagerly from 1983 to 1993, to 6.6%. Latinos held only 4% of the top jobs in 1993. Women held 40.9% in 1983 and 47.8% a decade later.

The statistics do not suggest which gains resulted from affirmative action programs and which from other factors, such as demographic changes. But they do show that the workplace remains dominated by white males.

At the UC system, the record also has been middling, despite extensive efforts to attract and groom minority high school students and consider race and gender in admissions.

In 1980, the first year for which an ethnic breakdown is available, blacks made up 3.8% of the student body at the system’s nine campuses. By last fall, 14 years later, the percentage was essentially the same--4%. Women have increased their ranks, but only marginally, making up 49.4% of the student body last fall.

The greatest gains among targeted groups came from Latinos and Chicanos, which the university lists separately. Taken together, their size more than doubled, from just under 6% in 1980 to nearly 12% last fall.

Overall, university records show, students in groups covered by affirmative action made up 20% of the fall, 1994, class, up from 11.4% in 1980 but still well below the proportions those communities represent in the state.

Not all of the changes can be attributed to affirmative action, as the burgeoning growth of Asian American students attests. That group, which is not part of the university’s outreach program, nearly doubled since 1980, from 12.9% to 24.5%, according to university records.

The increases have come out of the campuses’ traditional base of white men. While they made up 40% of the student body in 1980, they represented less than 24% in 1994.

Last month, UC Regent Ward Connerly, who is black, proposed an end to affirmative action. That will be considered this summer. UC President Jack W. Peltason has defended the university’s programs as “both an educational objective and as a matter of equity.”

“Affirmative action is a volatile issue that generates strong feelings on every side,” he acknowledged. “The term itself has become burdened with different and sometimes conflicting meanings.”

The initiative sounds disarmingly simple. But the harsh wrangling over its potential effect underscores that in this emotionally charged arena, nothing is simple.

Proponents contend that theirs is a pinpoint attack on racial preferences, not a widespread assault on all affirmative action programs. The legal impact, however, is open to question.

Certainly, a constitutional amendment would affect university admissions, state employees and companies doing business with the state--the latter an area where the reach of affirmative action has been the most profound.

In 1989, the state set a goal of awarding 15% of its contracts to minority-owned firms or subcontractors, and another 5% to businesses owned by women. Not until 1994 did the state’s biggest contractor, the Department of General Services, meet those goals and deliver 14.6% of its business to minority-owned firms and 8.8% to companies owned by women.

Efforts to meet goals for minority- and female-owned businesses would be outlawed, as would the state’s attempts to hire more female and minority employees.

“The only thing (the initiative) would do is prohibit civil rights from crossing its own line and actually being discriminatory,” said co-author Wood. “There is a difference between affirmative action as it was originally intended, which is good and positive, and actual preferences.”

Wood and some supporters believe that the measure would not ban any other diversity tools, such as advertising for jobs in minority newspapers or preparing minority high school students for university admissions.

But Campbell, a Harvard-educated lawyer, said he believes that any outreach based on gender or race could be legally problematic.

“If you place an ad in a newspaper intending to reach one race, you’re making it easier for one race to get that job,” he said. “It’s the same kind of thing as saying: ‘I’ll give you 5 points.’ Logically, you have to say it’s only a matter of degree.”

As for university admissions, UC officials say it is impossible to determine the impact of the proposals on future admissions. While affirmative action opponents argue that race and gender have become the main determinants of college entrance, university officials insist that their decisions are far more complex and the impact far more difficult to assess.

A joint report by the state legislative analyst and the finance director, made during an earlier attempt to qualify the initiative for the ballot, suggests that its reach may be far deeper than its proponents acknowledge. According to the 1993 report, the measure could save at least $170 million spent annually on affirmative action programs, and affect even local schools.

“The measure would eliminate voluntary desegregation programs by school districts, but would not affect court-ordered desegregation programs,” the report said. It added that the measure would eliminate elementary and college programs involving “counseling, tutoring, student financial aid and financial aid to selected school districts, where these programs are targeted based on race, sex, ethnicity or national origin.”

The issue will not come to a head until 1996, but campaigning already has begun.

In the face of mounting attacks, backers of affirmative action admit that they have not convinced Americans of their view that the policy benefits everyone--by setting up more open rules for hiring, for partially dismantling an old-boy network that also excluded some white males, and for breaking down institutional resistance to hiring women and minorities.

“We have a very, very important public education task ahead of us,” said Nancy L. Davis, co-founder of San Francisco’s Equal Rights Advocates, which is helping fight the proposed initiative.

While initiative supporters will base their arguments on the notion of fairness, opponents will contend that it would shift the balance of power back to white men. They plan to appeal particularly to women, who have been among the biggest beneficiaries of affirmative action.

Proponents of the measures almost always discuss the issue in racial terms, and their omission of the initiative’s impact on women suggests they are concerned about a backlash.

“They don’t want you to know that women are going down on this,” said Penda Hair, an attorney with the NAACP Legal Defense and Education Fund in Washington. “Women are not the unpopular stereotyped criminals that they want to make African Americans and Hispanics.”

But the opponents of affirmative action have been politically astute in their strategy thus far. Not only do they omit the subject of women, but they choose not to address private employers, who have grown more supportive of affirmative action, in the initiative. The amendment also defers to the federal government and the courts in cases of conflict--a gesture meant to limit court challenges.

It is most likely that an initiative would be placed on the November, 1996, ballot, in part to throw a wrench into Clinton’s reelection plans and in part because there is little time left to qualify the measure for the March, 1996, primary vote. The Legislature, acting on Richter’s bill, could still place the measure on the March ballot.

Even as they gear up for the coming battle, some civil rights activists sound weary, and not at all optimistic about their chances.

“Nobody’s interested in the facts and, even when you tell them the facts, they say they still don’t like it,” Rice said. “They are tired of it.”

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Affirmative Action

Some key laws and decisions in the history of affirmative action.

* Civil Rights Act of 1964:

Landmark legislation that included provisions barring discrimination in employment. Title VII of the act was the first federal law to prohibit discrimination in all employment practices based on race, color, religion, sex or national origin.

* Equal Employment Opportunity Commission: The role of the EEOC, created by the Civil Rights Act of 1964, is to eliminate discrimination in employment practices, promote equal employment programs and hear complaints and seek compliance with the law.

* Executive Order 11246: President Lyndon B. Johnson in 1965 signed this order requiring federal contractors to “take affirmative action to ensure that applicants are employed...without regard to their race, creed, color or national origin.” This laid the groundwork for requiring any company with federal contracts to adhere to affirmative action policies.

* Regents of University of California vs. Bakke: A 1978 Supreme Court case that tested the constitutionality of affirmative action programs in college and university admissions. The court ruled that Allan Bakke, a white male student who was denied admission to the UC Davis medical school, must be admitted because he had been unfairly discriminated against because of his race. At the same time, the court also approved the principle of affirmative action programs and upheld the right to use race as a factor in admissions.

* Richmond vs. Croson: A 1989 Supreme Court case that said city and state officials may not steer contracts toward blacks or other minorities, except to make up for a clear history of discrimination. The decision struck down a Richmond, Va., plan that guaranteed blacks and other minorities at least 30% of the city’s construction contracts.

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KEY TERMS

* Affirmative action: A program or policy designed to reverse past discriminatory patterns or practices. It requires employers or institutions to take actions to hire or admit members of minority groups or women.

* Reverse discrimination: Opponents of affirmative action argue that in seeking to remedy past discrimination against one group, usually a minority, members of other groups are harmed.

* Quotas: Specific numbers of jobs set aside for a particular group in hiring or contracting. Generally, they are not legal. In university admissions, they were ruled unconstitutional in the 1978 Bakke case. In some rare cases, however, where courts have found that there is a particularly pernicious pattern of racial or gender discrimination, they may order specific companies to hire on a quota basis to make up for past actions.

* Goals and Timetables: A goal is an estimate of the expected percentage of new hires or incoming university students that will come from various minority groups. The timetable outlines how quickly those goals are to be met. Unlike quotas, goals are not firm, make-or-break numbers.

Sources: Congressional Quarterly Guide to the United States Supreme Court; Guide to American Law.

Researched by NONA YATES / Los Angeles Times